Bockmier v. Niagara Recycling, Inc.

—Order unanimously modified on the law and as modified affirmed without costs in accordance with the following Memorandum: Plaintiff commenced this action to recover damages for work-related injuries he sustained at a landfill owned by defendant. The accident occurred when plaintiff stepped or jumped 3 to 4 feet from the top of a berm to a flattened area in a 15-foot excavation, injured his knee, and tumbled to the bottom of the excavation.

Supreme Court erred in granting that part of defendant’s motion seeking summary judgment dismissing the Labor Law § 241 (6) cause of action, which is based upon defendant’s alleged violation of 12 NYCRR 23-4.3. Defendant failed to meet its burden of establishing that it did not violate that regulation, that the regulation is not applicable to plaintiffs accident (cf., Gielow v Rosa Coplon Home, 251 AD2d 970 , 972, lv dismissed in part and denied in part 92 NY2d 1042 , rearg denied 93 NY2d 889 ; Ozzimo v H.E.S., Inc., 249 AD2d 912 , 914) or that its violation of the regulation was not a proximate cause of plaintiffs injuries (cf., Allen v Hodorowski & DeSantis Bldg. Contrs., 220 AD2d 959 , 960-961).

The court also erred in granting that part of defendant’s motion seeking summary judgment dismissing the Labor Law § 240 (1) cause of action and denying plaintiffs cross motion for partial summary judgment on liability on that cause of action. Contrary to defendant’s contentions, a landfill is a “structure” within the meaning of the statute (see generally, Lewis-Moors v Contel of N. Y., 78 NY2d 942 , 943; see also, Covey v Iroquois Gas Transmission Sys., 218 AD2d 197 , 199, affd 89 NY2d 952 ; Tooher v Willets Point Contr. Corp., 213 AD2d 856 , 857), and the 15-foot excavation posed “the type of elevation-related risk for which Labor Law § 240 (1) provides protection” (Covey v Iroquois Gas Transmission Sys., 89 NY2d 952 , 954, supra; see, Tooher v Willets Point Contr. Corp., supra, at 857 ; DeLong v State St. Assocs., 211 AD2d 891 , 892). It is undisputed that no safety devices were provided to protect plaintiff as he attempted to gain access to the worksite by descending into the excavation (see, Nichols v Deer Run Investors, 204 AD2d 929 , 931; see also, Rocovich v Consolidated Edison Co., 78 NY2d 509 , 513-514). The .fact that plaintiff stepped or jumped rather than fell into the excavation does not deprive him of the protection of the statute (see, Sherman v Piotrowski Bldrs., 229 AD2d 959 , 959-960).